ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JENNIFER M. LUKEMEYER JEFFREY A. MODISETT
Symmes, Voyles, Zahn, Paul & Hogan Attorney General of Indiana
ARTHUR THADDEUS PERRY Deputy Attorney General
SUPREME COURT OF INDIANA
PETER N. GEORGOPOLUS, )
) Supreme Court Cause Number
STATE OF INDIANA, )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Steven Nation, Judge
Cause No. 29D01-9607-CF-84
ON DIRECT APPEAL
September 29, 2000
After a trial by jury, Peter Georgopulos was convicted of murder in the
stabbing death of a real estate agent. The trial court sentenced him
to an enhanced term of sixty-five years imprisonment. In this direct appeal,
Georgopulos raises two issues for our review which we rephrase as follows: (1)
did the trial court err in refusing Georgopulos tendered instruction concerning the consequences
of a verdict of guilty but mentally ill; and (2) did the trial
court err in sentencing Georgopulos by relying on improper aggravating factors and not
giving proper weight to mitigating factors. Finding no error, we affirm.
On June 30, 1996, a Hamilton County deputy sheriff received a report of
blood on the floor of a model home. Upon investigation the deputy
discovered the body of real estate agent Kimberly Schriner. A later autopsy
revealed that Schriner suffered a skull fracture consistent with being struck with a
rock. The autopsy also revealed that Schriner suffered fifty-five stab wounds that
caused severe internal injury and ultimately her death. Later that day Georgopulos
checked into a motel in Clarks Hill, Indiana. Early the following morning
Georgopulos went to the front desk, told the clerk that he had committed
a crime, and asked the clerk to call the police. Ultimately officers
of the Fishers Police Department took Georgopulos into custody. In an audiotaped
statement, Georgopulos admitted striking Schriner with a rock that he had picked up
on his way into the model home. He also admitted stabbing Schriner
with a knife he had brought with him for that purpose. Apparently
Georgopulos was obsessed with Schriner, from whom he had purchased a house over
a year earlier, and he was upset because she had originally agreed to
go on a date with him but later canceled.
Georgopulos was charged with murder and notified the State that he intended to
interpose the defense of insanity. As a result, Georgopulos was examined by
three court appointed psychiatrists who concluded that he was not insane at the
time of the offense. In any event during voir dire both the
defense and the State questioned prospective jurors at length concerning their views of
the insanity defense. Some of the prospective jurors expressed skepticism of the
defense referring to it as a cop-out, a loophole, and a way to
get a lesser plea. Ultimately the jury returned a verdict of guilty
as charged. Thereafter the trial court sentenced Georgopolus to the maximum term
of sixty-five years. This appeal followed. Additional facts are set forth
below where relevant.
Georgopulos tendered the following final jury instruction: A finding of guilty but mentally
ill is of no consequence whatsoever. The effect is in all things
the same as a finding of guilty. R. at 178. The
trial court refused the instruction, and Georgopulos contends it erred in so doing
because the instruction represented a correct statement of the law, there was evidence
in the record to support giving the instruction, and the substance of the
tendered instruction was not covered by other instructions. See Hartman v. State,
669 N.E.2d 959, 960-61 (Ind. 1996). Georgopulos cites Stader v. State, 453
N.E.2d 1032 (Ind. Ct. App. 1983), for the proposition that where the verdict
options before a jury include not guilty by reason of insanity or guilty
but mentally ill, an instruction on the consequences of these verdicts becomes mandatory
in cases where an erroneous view of the applicable law becomes implanted in
the minds of the jurors. Id. at 1036.
First, we disagree with Georgopulos contention that his tendered jury instruction represents a
correct statement of the law. The language used in the instruction is
taken from this Courts opinion in Truman v. State, 481 N.E.2d 1089 (Ind.
See footnote However, [t]he mere fact that certain language or expressions are used
in the opinions of this Court to reach its final conclusion does not
necessarily make it proper language for instructions to a jury.
State, 544 N.E.2d 143, 148 (Ind. 1989). Contrary to the language in
Georgopulos tendered instruction, there are indeed consequences to a jury verdict of guilty
but mentally ill that are different from a verdict of guilty. It
is true that whenever a defendant is found guilty but mentally ill at
the time of the crime, the court shall sentence the defendant in the
same manner as a defendant found guilty of the offense. See Ind.
Code § 35-36-2-5(a). However, a physician must evaluate the guilty but mentally
ill defendant before the trial court may sentence him. See Ind. Code
§ 35-36-2-5(b). Also, at the Department of Correction, the guilty but mentally
ill defendant must be further evaluated and treated as is psychiatrically indicated for
his mental illness. See Ind. Code § 35-36-2-5(c). Neither of these
additional procedures is available to a defendant who is found simply guilty of
an offense. Because Georgopulos tendered instruction is not a correct statement of
the law, the trial court did not err in refusing to give it.
Further, we do not agree with the underlying premise of the need for
the proposed tendered instruction, namely: that an erroneous view of the law
had been planted in the jurors minds. Generally, it is improper to
instruct a jury on the specific penal ramifications of its verdicts. Schweitzer
v. State, 552 N.E.2d 454, 457 (Ind. 1990). However, a defendant is
entitled to an instruction on post-trial procedures if an erroneous view of the
law . . . has been planted in [the jurors] minds. Dipert
v. State, 259 Ind. 260, 262, 286 N.E.2d 405, 407 (1972). In
Dipert during voir dire a prospective juror asked the prosecutor what would happen
to the defendant if he were found not guilty by reason of insanity.
The prosecutor responded that the defendant would go scot free. Id.,
286 N.E.2d at 406. The trial court refused to admonish the jury
to disregard the remarks or to give an instruction concerning the post-trial proceedings
involved in a verdict of not guilty by reason of insanity. On
appeal this Court declared that normally a defendant who interposes a defense of
not guilty by reason of insanity is not entitled to an instruction concerning
post-trial procedures. However, a defendant is entitled to inform the jury of
such procedures where an erroneous view of the law on this subject has
been planted in their minds. Id., 286 N.E.2d at 407. Recently,
in Caldwell v. State, 722 N.E.2d 814 (Ind. 2000), the defendant tendered two
instructions detailing the consequences of the verdicts guilty but mentally ill and not
responsible by reason of insanity. The trial court refused the instructions, and
the defendant objected. In the States rebuttal to the defendants closing argument,
the prosecutor made the following comment:
Dont by your verdict and [sic] tell us that hes not responsible, dont
tell us that he has a license to kill. Dont let him
walk out of this courtroom with the rest of us when this case
is over with, dont let him get away with murder. Dont let
him get away with murder.
Id. at 816. The defendant again objected and requested that the rejected
instructions or an admonishment be given to the jury to eliminate any confusion
that the prosecutors comments may have engendered in the jury. The trial
court overruled the defendants objection and again refused to give the requested instructions
or an admonishment. Id.
Observing that the prosecutors comments were not as misleading as the statements in
Dipert, we determined that these statements nonetheless implied that the defendant would be
able to walk out of the courtroom if he were found not responsible
by reason of insanity. Id. at 817. As such, the prosecutors
closing remarks created in the jury an erroneous impression of law, namely: what
would happen to the defendant if he were found not responsible by reason
of insanity. Id. Accordingly, we found reversible error in the trial
courts failure to either admonish the jury or give the defendants tendered instructions.
Unlike the facts in either Dipert or Caldwell, here the prosecutor did not
implant an erroneous view of the law in the minds of the jury.
Indeed, the record shows whenever a prospective juror asked the prosecutor during
voir dire whether Indiana had any guidelines regarding the penal consequences concerning a
verdict of not responsible by reason of insanity, the prosecutor responded that there
are dispositional alternatives available; however, he should not go into the details because
the jury should return a verdict based solely on the evidence, not on
the possible penal ramifications, which is a matter left entirely to the trial
judge. R. at 1078-79. Georgopulos seems to acknowledge that the prosecutor
himself did not implant an erroneous view of the law in the minds
of the jury. Rather, he complains the voir dire examination revealed that
the consequences of the verdicts offered were unclear to the jurors and that
the discourse between the jurors and counsel for both sides revealed jurors ignorance
and misconception about applicable law. Brief of Appellant at 12. We
assume without deciding that an erroneous impression of the law on this subject
implanted in the minds of the jury, regardless of its source, entitles a
defendant to a curative jury instruction. However, we disagree that the jury
had such an impression in this case. Our review of the record
shows little more than prospective jurors expressing their attitudes, concerns, and opinions about
the insanity defense itself and not about potential post-trial dispositions.
the prospective jurors who expressed doubts about the insanity defense also indicated that
the defense could be appropriate in some cases and, despite their attitudes, they
could nevertheless follow the law. R. at 964, 965, 971, 973, 994,
1013, 1019, 1047, 1057. For this additional reason, the trial court did
not err in refusing to give Georgopulos tendered final instruction.
Even though no error occurred in this case, we do acknowledge the potential
for confusion in cases where the jury is faced with the option of
finding a defendant not responsible by reason of insanity or guilty but mentally
ill. Accordingly, in the exercise of our constitutional supervisory responsibilities, see Ind.
Const. Art. 7, § 4, we adopt the following procedure for cases tried
after the date this opinion is certified. When the verdict options before
a jury include not responsible by reason of insanity or guilty but mentally
ill, and the defendant requests a jury instruction on the penal consequences of
these verdicts, the trial court is required to give an appropriate instruction or
instructions as the case may be.
The trial court sentenced Georgopulos to the maximum term of sixty-five years.
Georgopulos challenges his sentence contending the trial court considered improper aggravating factors, did
not explain why the factors were aggravating, and erroneously failed to consider mitigating
factors. When enhancing a sentence, a trial court is required to state
its specific reasons for doing so. Accordingly, the sentencing statement must: (1)
identify significant aggravating and mitigating circumstances; (2) state the specific reason why each
circumstance is aggravating or mitigating; and (3) demonstrate that the trial court balanced
the aggravating and mitigating circumstances and determined that the aggravators outweighed the mitigators.
Battles v. State, 688 N.E.2d 1230, 1235 (Ind. 1997).
At sentencing the trial court engaged in an oral recitation setting forth the
facts and circumstances of the offense generally identifying aggravating and mitigating circumstances.
It is true that to facilitate appellate review, the better practice entails specifically
enumerating aggravating and mitigating circumstances and detailing the basis for each. Henson
v. State, 707 N.E.2d 792, 795 (Ind. 1999). However, the trial courts
narrative in this case is sufficient for us to conclude that it found
the following aggravating factors: (1) the risk that Georgopulos would commit another crime;
(2) a reduced sentence would depreciate the seriousness of the offense; (3) the
nature and circumstances of the offense; and (4) the lack of remorse.
As a mitigating factor, the trial court considered Georgopulos lack of a criminal
The risk that the person will commit another crime is a statutory aggravating
factor. See Ind. Code § 35-38-1-7.1(a)(1). In relying on this factor
the trial court explained:
[I] look at the planning and the manner of the execution of the
victim in this case. That leads me to believe that the Defendant
is a risk to the community for another murder of another woman.
His jail sentence must be increased to protect our community and to punish
the crime that he has committed.
R. at 2014. Although not a model of explicitness, the trial courts
explanation is sufficient.
See footnote Further, contrary to Georgopulos assertion, there is evidence in
the record to support the trial courts explanation; therefore, the use of this
aggravator was appropriate. A
s for the statutory aggravator that imposition of a
reduced or suspended sentence would depreciate the seriousness of the crime, see Ind.
Code § 35-38-1-7.1(b)(4), we have held that this factor cannot be used to
justify an enhanced sentence unless the trial court was considering a reduced sentence.
Barany v. State, 658 N.E.2d 60, 67 (Ind. 1995). However, the
record here supports the conclusion that the trial court may have been considering
reducing Georgopulos sentence from the presumptive.
Thus, the use of this aggravator
was also appropriate.
Much of the trial courts narrative in this case focused on the heinous
nature of the offense and the manner in which it was committed.
Observing that the crime was ruthless and brutal, the trial court highlighted the
innocence of the victim, that she was unarmed and defenseless, the repeated attacks
on the victim, and the mutilation of the victim while still alive.
The trial court also observed:
[T]he Defendant carefully planned this crime. He thought about it for a long
time. He got a knife, he got a change of clothes, he
got money for the get-away. He went through the routine of his
day and then he went over to the show house where the victim
would be at a certain time of the day he had planned.
He waited to be sure that no one was around, he hid the
knife in his pants and then he executed the murder. He carried
it out almost to perfection.
R. at 2016. A trial court may consider the nature and circumstances
of a crime to determine what sentence to impose. See Ind. Code
§ 35-38-1-7.1(a)(2); Taylor v. State, 695 N.E.2d 117, 120 (Ind. 1998). Further,
the manner in which a crime is committed can be considered as an
aggravating circumstance. Id. See also Sherwood v. State, 702 N.E.2d 694,
700 (Ind. 1998) (heinous nature of crime proper aggravating factor). We find
no error here. Conclusion
The trial court also considered Georgopulos lack of remorse as an aggravating factor.
Georgopulos contends the trial court erred in so doing because (a) at
sentencing he apologized to the victims family, and (b) he maintained his innocence
throughout the trial. On this latter point we make two observations.
First, it is not error for a trial court to consider as an
aggravating factor the lack of remorse by a defendant who insists upon his
innocence. Bacher v. State, 722 N.E.2d 799, 802 n.6 (Ind. 2000).
Rather, the lack of remorse is regarded only as a modest aggravator.
Id. Second, Georgopulos claim of innocence is premised on his defense of
insanity. That is, Georgopulos maintains that he was innocent because he did
not appreciate the wrongfulness of his conduct due to his mental condition.
Georgopulos confuses innocence with lack of guilt. The two are not the
same. Innocence presupposes the defendant committed no crime. See, e.g., Fortson
v. State, 269 Ind. 161, 171, 379 N.E.2d 147, 153 (1978) (observing that
a defendant may demonstrate his innocence by showing that some other person committed
the crime, instead of himself). On the other hand, the defense of
insanity is an acknowledgement that the defendant committed the crime but that the
defendant is not responsible for having committed it because of a mental disease
or defect. See Ind. Code § 35-41-3-6. It is clear
that Georgopulos did not maintain his innocence. Rather, he maintained that he
was not guilty.
As for the apology given at the time of sentencing, apparently the trial
court was not persuaded. Complimenting Georgopulos for his statement, the trial court
observed that the facts of the case itself showed no remorse. The
trial court pointed out that immediately after the attack Georgopulos was not sure
if Schriner was dead. Nonetheless, he never called the police, the fire
department, or the hospitaleven anonymously; he sought no medical attention for her; he
showed no remorse at the hotel; and he remained in a happy mood
when told of Schriners death. R. at 2017. The trial court
did not err in considering Georgopulos lack of remorse as an aggravating factor.
Finally, Georgopulos contends the trial court did not consider the following mitigating factors:
(1) the numerous letters written on his behalf; (2) the testimony of friends
and relatives; (3) his statement of remorse; and (4) his cooperation with police
by turning himself in and voluntarily giving a statement. Georgopulos is incorrect
in his contention that the trial court did not consider factors one through
The trial court considered the factors, discussed them on the record at the
sentencing hearing, and ultimately concluded that the aggravating factors outweighed the mitigating factors.
Even if we were to view Georgopulos contention as an argument that
the trial court did not give factors one through three sufficient mitigating weight,
he still cannot prevail. Although a finding of mitigating factors is well
within the discretion of a trial court, a trial court is not obligated
to weigh or credit the mitigating factors the way a defendant suggests they
should be weighed or credited. Shields v. State, 699 N.E.2d 636, 639
(Ind. 1998). Only when a trial court fails to find a mitigator
that the record clearly supports does a reasonable belief arise that the mitigator
was improperly overlooked. Id. at 639-40.
As for Georgopulos cooperation with police, the record does not reveal that this
factor was raised at sentencing. Thus, the trial court did not abuse
its discretion in failing to consider it. See Carter v. State, 711
N.E.2d 835, 838-39 (Ind. 1999) (no abuse of discretion in failing to consider
evidence of defendants low I.Q. where the issue was not raised at sentencing).
However, even if the subject of Georgopulos cooperation with police had been
presented to the trial court, we are not convinced the trial courts sentencing
decision would have been any different. In Brewer v. State, 646 N.E.2d
1382 (Ind. 1995), we found a maximum sentence of sixty years for murder
to be unreasonable when the defendant had confessed to a crime after it
had remained unsolved for fifteen years. Id. at 1386. Until the
defendants confession, police had not linked him or anyone else to the crime.
For fifteen years the defendant had escaped punishment for a murder, and
it was likely he could have continued avoiding punishment. Accordingly, we found
that the trial court gave insufficient weight to a significant mitigating factor, namely:
the defendants confession. Id.
Here, by contrast, Georgopulos blood was present on a towel found at the
crime scene, and he had previously spoken to others about his interest in
Schriner. It is highly unlikely that Schriners murder would have remained unsolved
for very long. Hence, assuming that Georgopulos cooperation with police was entitled
to some mitigating weight had this fact been presented to the trial court,
it is unlikely that the sentencing decision would have been different.
Only one aggravator is necessary for the trial court to impose an enhanced
sentence. Grund v. State, 671 N.E.2d 411, 419 (Ind. 1996). Here
the trial court found four valid aggravating factors and one mitigating factor.
We find that the trial court properly weighed the aggravating and mitigating factors
in reaching its sentencing decision.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, J.J., concur.
The exact quote says [i]t is of no consequence whatever that
the jury or a judge finds a person mentally ill at the same
time they find him to be guilty.
Truman, 481 N.E.2d at 1090.
One prospective juror did state that she would not be able
to serve on the panel if she were not informed of the possible
sentencing consequences. R. at 1078-79, 1088. However, this juror did not
serve because the trial court excused her for cause. R. at 1093.
Footnote: Although not binding, the trial court may consider the following as
Whenever a defendant is found guilty but mentally ill at the time of
the crime, the
cCourt shall sentence the defendant in the same manner as
a defendant found guilty of the offense. At the Department of Correction,
the defendant found guilty but mentally ill shall be further evaluated and treated
as is psychiatrically indicated for his illness.
See Ind. Code § 35-36-2-5.
Whenever a defendant is found not responsible by reason of insanity at the
time of the crime, the prosecuting attorney shall file a written petition for
mental health commitment with the cCourt. The cCourt shall hold a mental
health commitment hearing at the earliest opportunity after the finding of not responsible
by reason of insanity at the time of the crime, and the defendant
shall be detained in custody until the completion of the hearing. If,
upon the completion of the hearing, the court finds that the defendant is
mentally ill and either dangerous or gravely disabled, then the court may order
the defendant to be committed to an appropriate facility, or enter an outpatient
treatment program of not more than ninety (90) days.
See Ind. Code § 35-36-2-4; Ind. Code § 12-26-6-8.
The record shows that the trial court actually referred to the
correctional or rehabilitative treatment aggravator.
See Ind. Code § 35-38-1-7.1. For
this aggravator to justify in part an enhanced sentenced, it must be understood
to mean that the defendant is in need of correctional and rehabilitative treatment
that can best be provided by a period of incarceration in a penal
facility in excess of the presumptive sentence term. Mayberry v. State, 670
N.E.2d 1262, 1271 (Ind. 1996). Because the trial court made no attempt
to articulate how correction or rehabilitation could be achieved through the imposition of
an enhanced sentence rather than the presumptive sentence, we perceive the trial courts
reference to this aggravator as inadvertent.
For example, the trial court indicated that it was impressed with
the amount of recommendations and statements about the defendant, R. at 2012; that
it had reviewed . . . the memorandum of the defense and also
the letters that were found in the pre-sentence report . . . .,
R. at 2014; the court noted further, I tried to eliminate from my
mind the case itself and look at all the letters and the letters
were numerous for Mr. Georgopulos. But after considering that, the requests that
a lot of the letters had of reducing this to a 45 year
sentence, the Court finds that the imposition of a reduced sentence would depreciate
the seriousness of this crime. R. at 2015. It is true
that the trial courts narrative could be read as simply a response to
the letters and that the trial court never intended to reduce the sentence
at all. It is equally true, however, that in context the narrative
reflects a trial judge faced with a difficult case and pondering an appropriate